United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
the Court are the second amended petition for writ of habeas
corpus (ECF No. 31), respondents' motion to dismiss (ECF
No. 40), petitioner's opposition (ECF No. 59), and
respondents' reply (ECF No. 60). The Court finds that
petitioner has not exhausted his available state-court
remedies for all his grounds for relief. The Court grants the
motion in part.
first argue that in grounds 2 and 3 petitioner has not
identified decisions of the Supreme Court of the United
States. The Court has addressed this issue already. Again, 28
U.S.C. § 2254(d) does not impose a pleading requirement
that a petitioner cite specific cases. This Court is able to
analyze the decisions of the Nevada Supreme Court under
§ 2254(d) even without citations in the second amended
respondents argue that petitioner has failed to develop the
factual basis for the claim alleged in ground 4(b). Such a
failure, if true, would affect this Court's ability to
order an evidentiary hearing and this Court's analysis on
the merits. However, it is not an issue that the Court would
address on a motion to dismiss.
respondents argue that grounds 1[b] and 2[g] are
frivolous.[2a] The Court rejects respondents'
argument for the reasons stated at pages 16-17 of the
opposition. (ECF No. 59.)
respondents argue that petitioner has not exhausted his
state-court remedies for grounds 4(b), 4(c), 4(d), 4(e), 5,
and 6. Before a federal court may consider a petition for a
writ of habeas corpus, the petitioner must exhaust the
remedies available in state court. 28 U.S.C. § 2254(b).
To exhaust a ground for relief, a petitioner must fairly
present that ground to the state's highest court,
describing the operative facts and legal theory, and give
that court the opportunity to address and resolve the ground.
See Duncan v. Henry, 513 U.S. 364, 365 (1995)
(per curiam); Anderson v. Harless, 459 U.S.
4, 6 (1982).
acknowledges that all the challenged grounds are unexhausted.
Petitioner and respondents agree that grounds 4(b), 4(d),
4(e), 5, and 6 are not exhausted because petitioner did not
raise the issues contained in those grounds on appeal from
the denial of his post-conviction state habeas corpus
asks the Court to consider the grounds procedurally defaulted
and then asks the Court to excuse those procedural defaults.
First, he states that if he returned to state court, he would
be subject to the time bar of NRS § 34.726(1) and the
successive-petition bar of NRS § 34.810. Second,
although those statutes allow for a showing of cause and
prejudice to excuse their operation, he states that he cannot
make that showing in state court. Normally, the Court would
not accept petitioner's argument. With one exception,
Nevada's standards for cause and prejudice are the same
as the federal standards. However, petitioner states that his
only arguments for cause and prejudice is the ineffective
assistance of his initial post-conviction counsel. (ECF No.
59 at 6.
[W]hen a State requires a prisoner to raise an
ineffective-assistance-of-trial-counsel claim in a collateral
proceeding, a prisoner may establish cause for a default of
an ineffective-assistance claim in two circumstances. The
first is where the state courts did not appoint counsel in
the initial-review collateral proceeding for a claim of
ineffective assistance at trial. The second is where
appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v.
Washington, 466 U.S. 668 (1984). To overcome the
default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit. Cf. Miller-El
v. Cockrell, 537 U.S. 322 (2003) (describing standards
for certificates of appealability to issue).
Martinez v. Ryan, 566 U.S. 1, 14 (2012). The Court
later held that Martinez applies to procedurally
defaulted claims of ineffective assistance of trial counsel
in states that technically allow a person to raise an
ineffective-assistance claim on direct appeal but actually
provide no meaningful opportunity to develop the claim.
Trevino v. Thaler, 133 S.Ct. 1911, 1921 (2013).
Nevada generally requires a person to raise claims of
ineffective assistance of counsel in state court through a
post-conviction habeas corpus petition, unless the state
district court had developed the facts of the claim before
the filing of the direct appeal. Gibbons v. State,
634 P.2d 1214 (Nev. 1981). The Nevada Supreme Court has
declined to follow Martinez, and it does not allow
ineffective assistance of post-conviction counsel to be cause
to excuse the procedural bars of § 34.726 and §
34.810. Brown v. McDaniel, 331 P.3d 867, 870-75
does not apply to grounds 4(b), 4(d), 4(e), 5, and 6.
Petitioner raised these claims in his proper-person
post-conviction habeas corpus petition. The claims were not
exhausted because counsel on appeal from the denial of the
petition did not raise them before the Nevada Supreme Court.
(See Exh. 209 (ECF No. 53-32).) Martinez
does not apply to “attorney errors in other kinds of
proceedings, including appeals from initial-review collateral
proceedings . . . .” 566 U.S. at 16.
also does not apply to ground 5 for another reason. Ground 5
is a claim of ineffective assistance of appellate counsel.
Martinez does not extend to a procedurally defaulted
claim of ineffective assistance of appellate counsel.
Davila v. Davis, 137 S.Ct. 2058 (2017).
4(c) is not exhausted for a different reason. In the second
amended petition, petitioner alleged that he presented the
issue now in ground 4(c) in his initial, proper-person
post-conviction habeas corpus petition. (ECF No. 31 at 29.)
Now, after respondents moved to dismiss, petitioner states
that ground 4(c) never was raised in the state-court
post-conviction proceedings. (ECF No. 59 at 3.)
Petitioner's second statement is correct. The closest
that petitioner came to raising the issue in ground 4(c) is
in ground 5 of his proper-person state habeas corpus
petition. In that ground, petitioner alleged that trial
counsel provided ineffective assistance “at numerous
instances and for numerous reasons.” (Exh. 101 (ECF No.
51-11 at 10).) That bare claim contained no facts and could
not be a fair presentation of the issue now contained in
ground 4(c). Ground 4(c) is unexhausted because it was not
presented at any level of the state post-conviction
proceedings. Ground 4(c) also is procedurally defaulted
because, as noted above, petitioner admits that he has no
arguments for cause and prejudice that the Nevada state
courts would accept, and the Court takes petitioner's
silence on the question of actual ...